PA: State’s burden in warrantless search case is triggered by defense motion alleging facts and some law

The burden in a warrantless search case is on the state, but the defense must “state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof.” The invalidity of consent was never advanced to the trial court, so it’s waived for appeal. Then there was probable cause for search of cell phones. Commonwealth v. Freeman, 2015 PA Super 252, 2015 Pa. Super. LEXIS 783 (Dec. 2, 2015):

Although the burden in suppression matters is on the Commonwealth to establish “that the challenged evidence was not obtained in violation of the defendant’s rights,” Pa.R.Crim.P. 581(D), that burden is triggered only when the defendant “state[s] specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof.” Commonwealth v. McDonald, 2005 PA Super 285, 881 A.2d 858, 860 (Pa. Super. 2005). Thus, when a defendant’s motion to suppress does not assert specifically the grounds for suppression, he or she cannot later complain that the Commonwealth failed to address a particular theory never expressed in that motion. McDonald, 881 A.2d at 860; Commonwealth v. Quaid, 2005 PA Super 100, 871 A.2d 246, 249 (Pa. Super. 2005) (“[W]hen a motion to suppress is not specific in asserting the evidence believed to have been unlawfully obtained and/or the basis for the unlawfulness, the defendant cannot complain if the Commonwealth fails to address the legality of the evidence the defendant wishes to contest.”).

Nowhere in his motion to suppress did Freeman aver that Nixon’s consent was invalid, nor did he allege that Detective Richard’s search exceeded the scope of that consent. Moreover, when the trial court asked Freeman to state his basis for requesting suppression on the record at the commencement of the suppression hearing, Freeman did not raise such an argument. See N.T.S., 1/7/2014, at 16-17 (arguing that the search warrants the police obtained were unsupported by probable cause). His failure to advance these particular legal theories in the first instance before the trial court renders his claims waived.